DART Service Agreement for Publishers [Addendum No. 2] - DoubleClick Inc. and Ask Jeeves Inc.
Addendum No. 2
This Addendum No. 2 ("Addendum"), dated as of March 30, 2001 ("Effective
Date"), hereby amends the DART Service Agreement for Publishers by and between
DoubleClick Inc. ("DoubleClick"), and Ask Jeeves, Inc. ("You" or "Company"),
dated as of March 31, 1999 (the "Agreement"). Capitalized terms used herein but
not otherwise defined herein shall have the meanings assigned to such terms in
the Agreement.
1. The parties hereby agree that the term of the Agreement set forth in
Section 9 shall be extended for an additional three (3) years from the
Effective Date of this Addendum No. 2.
2. The parties hereby agree that the Monthly Service Fee rates set forth on
the cover page of the Agreement are hereby replaced in their entirety with
the following:
Flat rate for all banners, buttons, text links and house ads:
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Year 1: $|*|
Year 2: $|*|
Year 3: $|*|
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The CPM rates set forth above are applicable only for advertisements
served and supported from DoubleClick data and support centers located in
the United States.
DoubleClick agrees that the Monthly Service Fee rates and terms set forth
in this Agreement shall extend to all Web sites of Your wholly owned
subsidiaries that You elect to include under the terms and conditions of
this Agreement. Rates and terms set forth herein shall also extend to ad
impressions of Your "network affiliates" which are sold and served by You
pursuant to Your agreement with such "network affiliate". For the purpose
of this paragraph, "network affiliates" is defined as any Web based entity
on which any percentage of the advertising is sold or resold by You.
Each party expressly acknowledges and agrees that the pricing terms set
forth above constitute "Confidential Information", as defined in Section
14 (Confidentiality) of the Agreement, and, thus, must be maintained in
strict confidence in accordance with the terms of such section. You may
disclose such rates to your wholly owned subsidiaries and/or network
affiliates for purposes of extending the rates and terms of this Addendum
to such entities as permitted under this Section.
3. The parties hereby agree that the "Ad Size Limit" of 14 Kbytes set forth
on the cover page of the Agreement is hereby changed to 20 Kbytes per Ad.
The parties hereby agree that the "Minimum Monthly Service Fee" of US$ |*|
set forth on the cover page of the Agreement is hereby replaced with the
"Minimum Monthly Service Fee" of US$ |*| per month for each year of the extended
Term.
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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4. The parties hereby agree that the "Custom Arrangements" Section of the
Agreement set forth in the initial three pages of the Agreement is hereby
replaced in its entirety with the following
|*|
Subject to the terms of this Agreement, You agree that |*|shall |*|You may
|*|(i)|*| and (ii)|*|as of the Effective Date of this Addendum No. 2
|*|Notwithstanding the above|*|You must make a written, good faith request
(which request contains sufficient, industry standard, technical, and
functional specifications regarding the |*|to DoubleClick to allow
DoubleClick |*|If after five (5) business days from Your written request,
DoubleClick fails to reasonably and in good faith demonstrate its ability
to |*|in accordance with Your specifications set forth in Your request) in
a manner that conforms to then current industry standards with regard to
ad serving of new ad units|*|For the purpose of the written request set
forth above, electronic mail (E-Mail) to Your Dedicated Technical Account
Manager or DoubleClick's General Counsel with follow-up verbal
confirmation that such request was indeed received by either of those
parties, shall be deemed sufficient as a written request.
RIGHT OF FIRST REFUSAL
For the initial 18 months of the extended Term, You hereby grant
DoubleClick a "right of first refusal' to perform ad management and
delivery services with respect to Your e-mail newsletters/promotions and
sweepstakes promotions. For the initial 18 months of the extended Term,
DoubleClick hereby grants You a "right of first refusal" to provide search
solutions for the DoubleClick Web site, customer service site or DART
interface. A "right of first refusal" shall mean the following: (i) the
party who desires services ("Customer") shall approach the other party
("Vendor") concerning the services for which the Vendor has a right of
first refusal; (ii) for the next thirty day period, the parties shall work
in good faith to come to negotiate and enter into a definitive agreement
whereby Vendor would provide such services to Customer; and (iii) if the
parties do not execute such a definitive agreement in such thirty day
period, then the Customer may approach and contract with third parties for
the relevant services. Nothing in this Section shall require the parties
to enter into a definitive agreement concerning the relevant services if
the parties in good faith cannot agree upon terms, conditions, and
pricing.
ONE-TO-ONE SUPPORT
DoubleClick shall provide You with one-to-one support free of charge
throughout the duration of the extended term which shall consist of the
following: You shall be provided a dedicated Technical Account Manager at
DoubleClick ("Your Dedicated Technical Account Manager"), who shall (i)
serve as Your interface to DoubleClick support, and (ii) work with You to
better understand Your business needs and site configuration and use this
in-depth knowledge, together with his/her technical expertise, to help
resolve any problems with Your use of the Service that You may encounter,
and find ways to proactively improve Your use of DoubleClick's DART
technology and
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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services. Upon providing three (3) designated primary contacts to
DoubleClick for one-to-one support ("Your Designated Contacts"), Your
Designated Contacts shall be provided with multiple ways of reaching and
working with Your Dedicated Technical Account Manager at DoubleClick
(which shall include, by way of example, and not limitation, telephone
support, on-site visits, and periodic conference calls). In the event that
issues arise regarding the level, quality, frequency and effectiveness of
the support You are receiving from DoubleClick, DoubleClick shall provide
You with an escalation list of people within DoubleClick You can contact
to resolve these issues, which list shall commence with Your Dedicated
Technical Account Manager and proceed to the Vice President of Client
Services.
CUSTOM REPORTS
Custom Reports: for each agreed upon custom report to be provided to You
by DoubleClick, the rates will be as follows:
$|*|/month for daily delivery
$|*|/month for weekly delivery
$|*|/month for monthly delivery
In addition, You shall have the right to receive one (1) type of daily
Custom Report, which type of Custom Report is mutually agreed upon by the
parties, free of charge for a period of one (1) year during the Term.
MARKETING/PUBLICITY
Upon execution of this Addendum No. 2, both parties agree to work
together to develop a mutually agreed upon press release meant to inform
the public of the parties' agreement set forth herein, such press
release to be issued at a time to be mutually agreed upon by the
parties. Upon Your prior approval, DoubleClick shall have the right to
use Your name in DoubleClick's marketing materials promoting the
Service.
SERVICE LEVELS
AD MANAGEMENT SYSTEM AVAILABILITY: DoubleClick shall use commercially
reasonable efforts to ensure that the Ad Management System is available
for Your use at least ninety-seven percent (97%) of the time calculated
on a calendar monthly basis; it being understood that Ad Management
System "down" time shall exclude time (i) required for routine system
maintenance not to exceed twenty-four (24) hours in any calendar month
that is performed by DoubleClick so long as You are notified at least
one (1) business day in advance (it being understood that (x) the Ad
Management System is "down" for routine scheduled maintenance for up to
ten (10) hours each Saturday between the hours of 8 AM to 4 PM Eastern
standard time (DoubleClick agrees to provide Company with reasonable
advanced notice should the hours for routine scheduled maintenance be
adjusted in the future) and (y) advance notice shall not be required for
such routine
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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scheduled maintenance) and (ii) resulting from technical malfunctions in
Your Web site's systems, or any other circumstances reasonably beyond
DoubleClick's control (including without limitation, Internet delays,
network congestion and ISP malfunctions). Notwithstanding Section 10 of
the Agreement, in the event that Ad Management System unscheduled downtime
exceeds ten percent (10%) in any thirty (30) day period, then You will
have the one time right to terminate this Agreement upon thirty (30) days
prior written notice to DoubleClick, such notice to be provided to
DoubleClick within sixty (60) days of the applicable period during which
the downtime occurred. The remedy stated above shall be Your sole remedy
for any and all unavailability of the System.
DART SERVICE AVAILABILITY: DoubleClick shall use commercially reasonable
efforts to ensure that the DART Service delivers Ads at least ninety-eight
and one half percent (98.5%) of the time, calculated on a calendar monthly
basis, it being understood that "down time" (calculated as the difference
between 100% and the actual percentage delivery of ads) shall exclude time
(i) required for routine system maintenance not to exceed thirty (30)
minutes in any calendar month that is performed by DoubleClick so long as
such maintenance is performed during low volume periods, and (ii)
resulting from technical malfunctions in the Web Sites' systems, or any
other circumstances beyond DoubleClick's reasonable control (including
without limitation, Internet delays, network congestion and ISP
malfunctions). In the event that unscheduled downtime exceeds one and one
half percent (1.5%) in any month, then You will have the one time right to
terminate this Agreement upon thirty (30) days prior written notice to
DoubleClick, such notice to be provided to DoubleClick within sixty (60)
days of the applicable month during which the downtime occurred. The
parties agree that the service level and remedy stated above shall not
apply to advertisements served in those countries in which DoubleClick
does not maintain a data center. The remedy stated above shall be Your
sole remedy for any and all unavailability of the Service.
DELIVERY DIFFERENTIAL PERFORMANCE MEASUREMENT: In order to adequately
determine the latency, if any, caused by an advertisement served by
DoubleClick onto the Target Site(s), You are required, at Your own cost
and expense, to create a special URL for a l0k of HTML Web page which will
be identical to a page within the Target Site, except that instead of
containing the DoubleClick ad tag in the HTML for that page, the page
should contain a standard l0k of HTML image GIF so that the specially
created URL ("Page A") is identical in size and weight to the page within
the Target Site ("Page B") it is meant to replicate. For ease of
measurement, Page B should be a l0k of HTML page that contains a single
DoubleClick ad tag accessing a 468 by 60 pixel Ad banner of l0k of HTML.
Neither Page A or Page B should contain any other third party service such
as Inktomi, Akamai, database calls, etc. Once Page A is created and Web
enabled, the parties shall have Keynote (an independent third party Web
monitoring entity) measure, on a regular basis, the download time of Page
A as compared to the download time of Page B (the "Differential
Measurement"), with You bearing the cost of such monitoring. For example,
if the download time of Page A is 0.8 seconds and the download time of
Page B is 1.2 seconds, the Differential Measurement would equal 400
milliseconds. Both parties will have access to the Keynote measurements
and the URL's of Page A and Page B in
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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order to monitor the Differential Measurement. The parties agree that 800
milliseconds shall be an acceptable performance differential level between
Page A and Page B (the "Benchmark"). If for any consecutive and successive
three (3) month period (each a "Period"), the mean Differential
Measurement for each month of that Period is greater than the Benchmark,
then You shall be entitled to receive a credit against Your next Monthly
Service Fee equal to five percent (5%) of Your Monthly Service Fees for
the Period in which the Differential Measurement was above the Benchmark.
If for any Period, the mean Differential Measurement for each month of
that Period is greater that 1,200 milliseconds, then You shall be entitled
to terminate this Agreement upon thirty (30) days prior written notice to
DoubleClick. The parties agree that the service level and remedy stated
above shall not apply to advertisements served in those countries in which
DoubleClick does not maintain a data center. The remedy stated above shall
be Your sole remedy for any and all Differential Measurements.
PRIVACY
Each party acknowledges that adherence to fair information collection
practices is of utmost importance to the other. During the term of this
Agreement, Company agrees that the Web Site (and if Company is an agency,
Company will use reasonable commercial efforts to ensure its clients' Web
Site(s)) will feature an easy-to-understand privacy policy, linked at a
minimum from the Web Site's home page, that, (i) in addition to the
disclosures about Company's privacy practices, identifies the collection
and use of information gathered in connection with DoubleClick's ad
serving and reporting activities and (ii) offers the user an opportunity
to opt out from such collection and use. DoubleClick suggests the
following language be added to Company's privacy policy to satisfy the
requirements in (i) and (ii) above: "We use third-party advertising
companies to serve ads when you visit our web site. These companies may
use information (not including your name, address, email address or
telephone number) about your visits to this and other web sites in order
to provide advertisements about goods and services of interest to you. In
the course of serving advertisements to this site, our third-party
advertising Company may place or recognize a unique "cookie" on your
browser. If you would like more information about this practice and to
know your choices about not having this information used by these
companies, click here."[LINK TO URL to be provided by DoubleClick; see,
for example, www.doubleclick.net:8080/privacy_policy/ or
http://www.privacychoices.org]. DoubleClick reserves the right to change
its suggested disclosure upon written notice to Company, and if such
change is required by law or governmental or industry regulation, Company
agrees to cooperate to post such revised disclosure within three (3)
business days following receipt of such notice, or otherwise post within
five (5) business days following receipt of such notice such other
disclosure as may be mutually agreeable to the parties. DoubleClick shall
have the right to terminate this Agreement on thirty (30) days prior
written notice to Company if Company breaches this section and fails to
remedy such breach within said thirty day period. In addition, You agree
never to alter any DoubleClick ad placement tags so as to include any
personally-identifiable or sensitive (i.e., information related to
children under 14 years of age, sexual orientation, health or detailed
financial information) information
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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of any Visitors in such tags. DoubleClick shall have the right to
immediately terminate this Agreement should You breach the prior sentence.
Each party shall comply with its own stated privacy policy in connection
with its delivery or receipt of the Service hereunder. Each party shall
have the right to immediately terminate this Agreement should the other
party breach the foregoing sentence.
PRIOR CREDITS
The parties agree that none of the prior credits which accrued to You and
have not been used under the Agreement shall carry over to the extended
Term of the Agreement, as set forth in this Addendum No. 2.
5. The parties hereby agree that the following sentence shall be deleted from
Section 5 of the Agreement:
You shall not permit any of Your employees to access and use the Service
and System unless any such employee has successfully completed the
training session and has been certified by DoubleClick.
And shall be replaced with the following:
You shall not permit any of Your employees to access and use the Service
or the System to book or modify ad placements unless any such employee has
successfully completed the training session and has been so certified by
DoubleClick. To access and view reports, Your employees are not required
to attend training sessions.
DoubleClick shall provide regular training at its New York and San
Francisco training facilities for $|*| per training day. DoubleClick will
provide You with credits for 2 training days, free of charge, per quarter.
6. The parties hereby agree that the following sentence shall be deleted from
Section 6 of the Agreement:
To the extent that the average file size of all ad banners delivered via
the Service in a given month ("Average Ad Size") exceeds the Ad Size Limit
set forth on the Cover Page, the Monthly Service Fee payable for that
month shall be increased by an amount that shall be calculated by
subtracting the Ad Size Limit from the Average Ad Size, dividing that
difference by the Ad Size Limit, and multiplying the quotient by the
Monthly Service Fee CPM rate set forth on the Cover Page of this
Agreement.
And shall be replaced in its entirety with the following:
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21Kbytes to 40k...... $|*|
40K to 75K........... $|*|
76 to 125............ $|*|
126 to 175........... $|*|
176 to 225........... $|*|
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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226 to 300........... $|*|
301 to 400........... $|*|
401 to 500........... $|*|
500 + not recommended, call to discuss
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7. The parties hereby agree that the first sentence of Section 13 of the
Agreement is hereby replaced by the following:
Except for credits set forth in Service Levels in the Custom Arrangements
above, DoubleClick shall not be liable to You or any third party for any
unavailability or inoperability of the services, telecommunications
systems or the internet, technical malfunction, computer error, corruption
or loss of information.
8. DoubleClick and Company hereby ratify all other terms and conditions of
the Agreement which have not been modified by this Addendum No. 2, and
such other terms and conditions shall remain in full force and effect. To
the extent that the terms of this Addendum may conflict with the terms of
the Agreement, then the terms of this Addendum shall control with respect
to such conflict.
Company and DoubleClick confirm their mutual agreement to this Addendum
No. 2 as of the Effective Date by signing below.
DOUBLECLICK INC. ASK JEEVES, INC.
By: /s/ Aaron Mittman By: /s/ Cynthia Pevehouse
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Name: Aaron Mittman Name: Cynthia Pevehouse
Title: Director Sales, The Americas Title: General Counsel
Tech Solutions
Ask Jeeves, Inc.
Approved Finance /s/ SB
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Initial/Date
Approved Legal /s/ CL 4 2 01
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Initial/Date
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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